COURT OF APPEAL FOR ONTARIO

CITATION: Gustafson v. Johnson, 2016 ONCA 972

DATE: 20161222

DOCKET: M46963 (C62186)

Gillese, MacFarland and Pepall JJ.A.

BETWEEN

Gina Gustafson and Juanita Curle

Applicants (Responding Parties)

and

Bruce Johnson, Allan Curle, Norall Group Inc., and Norall Group Contracting Inc.

Respondents (Moving Parties)

Bruce Johnson and Allan Curle, acting in person

Gino Arnone and Morris Holervich, for the responding parties

Heard: December 12 and 16, 2016

ENDORSEMENT

[1] In this motion, the moving parties seek to review the order of a single judge of this court, dated September 12, 2016 (the “Order”). The Order dismissed their motion to extend time to perfect their appeal.

Background in Brief

[2] The moving parties wish to appeal the decision of Pierce J. made on April 26, 2016, following a contested winding up application. They filed a notice of appeal in this matter on May 26, 2016.

[3] By order dated August 24, 2016, the Registrar dismissed the moving parties’ appeal for delay (the “Registrar’s Dismissal Order”).

[4] The moving parties then brought a motion to a single judge of this court for an order setting aside the Registrar’s Dismissal Order and extending the time to perfect their appeal. The motion judge found that the moving parties had the requisite intention to appeal and had given a satisfactory explanation for the short delay. The explanation was that after the trial before Pierce J., their lawyer had advised them that due to the complexity of the matter, he would not be able to continue to represent them through the appeal. As self-represented litigants, they had struggled with preparing the court documents necessary to perfect their appeal.

[5] The motion judge dismissed their motion for an extension of time on the basis that their appeal did not have any real chance of success. It is that decision which gave rise to the Order.

[6] On this review motion, the moving parties ask that the Order be set aside and that they be granted an extension of time to perfect their appeal.

Analysis

[7] An appeal lies from an order or judgment and not from the reasons for decision. No judgment has been taken out in this proceeding. If it is necessary to understand the merits of the proposed appeal, then the court may require the parties to file the formal judgment before resolving a motion to extend time: Ontario Wealth Management Corporation v. Sica Masonry and General Contracting Ltd., 2014 ONCA 500, 17 C.B.R. (6th) 91, at paras. 5-6. In the circumstances of this case, without the formal judgment it is not possible for the court to properly assess the merits of the putative appeal. Therefore, we would set aside the Order and order that a judgment be filed before a further motion to extend time is heard and decided.

[8] A single example will suffice to show why it is necessary to see the formal terms of the judgment before the court can fairly assess the putative ground of appeal relating to Ms. Johnson. The moving parties submit that the application judge erred by issuing a decision purporting to bind Ms. Johnson, a person who was not named as a party to the application. Without the formal judgment, the court is not in a position to assess the merits of this ground of appeal. Indeed, this ground of appeal gains strength from the respondents’ stated reason for not yet having taken out the judgment in this matter. The reason given is that so long as the formal judgment has not been taken out, the application judge remains seized of the matter and that, in turn, leaves open the possibility of rectifying any problems arising from the fact that Ms. Johnson was not named as a respondent to the application.

Disposition

[9] For these reasons, the motion to review the Order is granted and the Order is set aside, without prejudice to the right of the moving parties to renew their motion for an extension of time to perfect their appeal. The moving parties have 20 days from the date that the judgment is filed to renew their motion.

[10] Costs of this motion are to the moving parties, fixed in the sum of $1,000, all-inclusive, payable in the cause.

“E.E. Gillese J.A.”

“J. MacFarland J.A.”

“S.E. Pepall J.A.”